If a UDRP panelist believes domainers are the same thing as cybersquatters, is he fit to arbitrate?

I came across an editorial on CNET today by Doug Isenberg, an attorney in Atlanta and founder of GigaLaw.com, and a domain name panelist for the World Intellectual Property Organization. The guest editorial focuses on Whois privacy and why it's imperative to maintain open access to registrant data for intellectual property and legal purposes. That's a common opinion I've read a million times. Nothing groundbreaking there.

But then I was shocked to read that Isenberg generalizes domainers as cybersquatters:

Today, cybersquatters have rebranded themselves as "domainers." Popular blogs and news sites track their activities. Industry conferences have sprouted to serve them. And "monetization" services--which quickly let domain name registrants turn otherwise unused, or parked, Web pages into money via affiliate links that often trade on the goodwill established by well-known brand owners--are finding a large and growing customer base of hungry and often shrewd domain name registrants.

All of these practices are costing honest businesses untold sums.

It seems that Isenberg believes use of monetization services is bad and that domainers are bad. I'd hate to have a UDRP decision fall into his hands if he goes in with this bias. Perhaps he's simply trying to say that monetization of trademarked domains is bad — which is hard to argue with — but this doesn't come across clearly in his editorial. He goes on to discuss "fixing" the issue:

Who is going to stop these online shenanigans? Apparently not ICANN, which has never revoked the accreditation of a single registrar, even though some of them are among the most popular registrants of domain names. To its credit, ICANN has sought to hire a Compliance Program Specialist, recognizing that violations by registrars "can cause serious detriment to consumers and to the Internet community both directly, and indirectly, by damaging the competitive process that is crucial to a dynamic and healthy market." Yet the role has remained unfilled for more than a year.

In many ways ICANN's hands are tied. The organization would like to sanction registrars, but the only thing it can do is "the nuclear option" — taking away the registrar's accreditation. This is a major step, and it might be warranted for some registars, but how can you do this without first making a warning sanction or fine to the registrar? (ICANN can't do this.)

Don't get me wrong. I believe that domain kiting and typosquatting of trademark typos is bad for business. I just think that Isenberg is making broad generalizations about domain name owners...and this conflicts with his ability to serve as a domain name arbitrator. Furthermore, it baffles me that large companies haven't looked at an affordable solution to people typosquatting its brand names: register as many variations of the domain as possible. It would cost a lot less than hiring lawyers to send off cease & desist letters.

By Andrew Allemann, Domain Name Blogger. More blog posts from Andrew Allemann can also be read here.

It isn't practical for a trademark owner to register every typo variation. One solution that works for some trademark owners is somewhat non-obvious, but I have heard from those for whom it works.

The basic proposition is that there might be 10,000 possible variations of my trademark. Now, I can pay $60,000 to register those domain names. Or, I can pay an attorney $100,000 to go after some subset of those domain names. Or I can sit and think about why I have a trademark, and what my purpose in business really is.

That third line of thought suggests the following. In options A or B above, I really don't know if I'm getting my money's worth for what amounts to advertising expenses (of which TM protection is a subset). While it does appear that Mr. Isenberg has issues with the advertising business, one has to remember that advertising is what trademarks are all about.

So, let's say I do this. I take that $60,000 and I spend it on PPC advertising. That does two things. First, it brings me customers, which is what I am in business to do. Second, it puts the link to me on all of those typosquatted parked domain sites. If a consumer mis-typed my trademark, and sees the link to my site spelled correctly, what do you think that consumer is going to do? Remember, the objective is to attract my customers - collecting domain names is not an end in itself. But to those whose business is stirring up controversy… well, lawyers have a Latin phrase for that "Res Ipsa Loquitor".

But wait! You mean I should pay scumbag cybersquatters to advertise my own stuff? Well, I was in New York City last week, and you can't walk two blocks without running to some scruffy character wearing a sign on his chest and handing out photocopied ads for some nearby business. In the real world, paying some dude a couple of pennies per hour to hand out ads is something that nobody bats an eye at. But this is one of those things which, if done on the internet, is a crime against humanity.

Another effect of this strategy, as I approach the character limit here, is that it outsources the performance risk of registering all those typo-variation domain names. A domainer is going to know, for certain, at the end of a year whether any particular domain name made more than six bucks. But, a priori, that domainer is taking the risk that the domain name will not attract enough traffic to earn its keep. The economic rationality of the domainer ensures that what I get for my PPC advertising expense is what an advertising expense is supposed to do - bring me my customers.

Now, again, that's not something that applies in all situations, but it is something that was explained to me by a brand manager for a major hotel chain who took me aside one day and explained to me that there was no way they could go after every +cityname.com domain name. But when they looked at those sites, the top links were to (a) travel sites like hotels.com where the chain gets a significant share of bookings, or (b) their own PPC links.

Advertisers (also known as "trademark owners") have a choice where they can spend their advertising dollar. They can buy a TV spot watched by random viewers (or TIVO owners with a fast-forward button), a newspaper ad sold on inflated circulation (who really reads the free USA Today in hotel rooms?), or they can budget exactly what they want to spend on getting actual qualified customers, and there is an army of typosquatters who will deliver those advertisements directly to those customers.

To see this principle in action, the recent Neiman Marcus suit is a good example. With a little experimentation, you will find that Neiman Marcus has made "keyword buys" on Google for typo variants of "Neiman Marcus" which are UNregistered as domain names. Now, if their typo keyword buys are feeding into someone's automatic domain registration system, what do you THINK is going to happen? The logic of paying Google for those typo's only makes sense when you figure that NM can simply sit and wait for the logical result, and then claim 100K per domain name in an ACPA suit based on a sequence of events that they put in motion themselves. Clearly, anyone at NM who can buy a typo keyword at Google is capable of registering the corresponding domain name. So I guess the point is "paying Google to trigger ads in response to a typo" is good, but "paying a domainer to display those same ads in response to a typo" is something that ICANN needs to clamp down on. Whatever the logic may be, it does not appear to be an application of critical thinking.

But wait! You mean I should pay scumbag cybersquatters to advertise my own stuff? Well, I was in New York City last week, and you can’t walk two blocks without running to some scruffy character wearing a sign on his chest and handing out photocopied ads for some nearby business. In the real world, paying some dude a couple of pennies per hour to hand out ads is something that nobody bats an eye at. But this is one of those things which, if done on the internet, is a crime against humanity.

Do the typosquatters just have sites? Or do the scummier variety of typosquatters do something extra - such as stuff their ad website on that typo domain with bogus keywords and then go on a search engine submission spree to game google etc's site rankings, so that stupid people are lured to click on those?

Or maybe - a worse thing - use spyware to alter browsers / hosts files so that queries to wikipedia, google etc get redirected to a typo site.

Common or garden bad behavior in a domainer - Scruffy bum street seller with a sign on the chest reading Charmin, and what's getting sold is "Chramin", a "John Wayne" toilet paper (old joke - a reservation indian comes to a store, to return some special unbranded paper he'd bought - "its rough, its tough and it takes no shit from injuns").

Worse behavior - Another scruffy bum who pushes those flyers through your mailbox, or tapes them to your car windscreen, or glues them onto phone booths and lamp posts. Or spray paints ads on the pavements, or on your wall.

That's the sort of thing that usually gets regarded as a "crime against humanity on the internet".

That’s the sort of thing that usually gets regarded as a “crime against humanity on the internet”.

There are lots of bad things on the internet, so let's just confuse the issue by lumping it into one ball and blaming it on domainers.

My post is directed to Mr. Isenberg's comments that cybersquatters now are called "domainers". I gather that all domainers, as a class, are also spammers, sploggers, browser hi-jackers, and adware distributors.

I guess that moves domainers up a notch on the respectability scale from "ambulance chasers".

There is a syllogism in these discussions that goes the same way every time:

1. Someone is doing something bad.

2. The bad thing involves the use of a domain name.

3. Therefore everyone who registers a domain name is bad.

With enough lawyers providing input to the technical coordinating body known as ICANN, the internet will approach paradise soon.

You want scummy monetization abuse? Try this. THIRD-level squatting…

I registered a domain name - netlaw.com - and I ordered domain forwarding so that www.netlaw.com would go to my site.

Worked fine, or so I thought, until I noticed that if you mis-type the "www" and only type ww.netlaw.com then the registrar has set up their "domain forwarding" system to take you to THEIR monetization page which advertises parties offering competitive services.

You can't mention "syllogism" without attracting my nit-picking attention. It could be argued that your own complaint here is based on a logical fallacy. The claim that "all cybersquatters describe themselves as 'domainers'" does not imply that "anyone describing himself as a 'domainer' is a cybersquatter", yet that's the message to which you're taking exception.

Now you could say it's not a matter of logic, but rhetoric: the simple association of cybersquatters and 'domainers', no matter what the spcifics, besmirches the 'good domainers'. Well I'd be much quicker to jump up and defend 'domainers' from such villainous company if it weren't for the fact that all cybersquatters and domainers have this much in common: they exploit a public resource for private monetary gain in a manner which is not considerate of the broader community of domain name users, and is not in accordance with the intended purpose of the system. The primary difference between cybersquatters and domainers is that there's a lot more legal precedent against cybersquatting, specifically. Whether this remains true in the long term has yet to be determined.

While I'm here, I'll comment on your complaint about third-level squatting. Scuzzy practice or not, you were at least in a position to do something about it without resort to the courts, yes? I trust that you were sufficiently annoyed by this that you did the obvious thing and took your business elsewhere. You cancelled your domain forwarding service, and obtained it from some other service provider who didn't abuse your domain name for private gain, right? It may well be "scummy monetization abuse", but it's hardly a problem, any more than sitting on a thorn is a problem.

The odd thing is that you seem perfectly capable of moral outrage when someone takes the opportunity to 'monetize' your domain name, specifically, but not when the exploitation and monetization happens at the level of the commons.

It may well be “scummy monetization abuse”, but it’s hardly a problem, any more than sitting on a thorn is a problem.

You fail to realize that the registrar engaging in this practice is monetizing third-level typos of untold numbers of unsuspecting and naive customers. And, no, I left mine the way it is as a demonstration, but I have heard from others who discovered it to their outrage, and who do not want to be embarassed in public that they fell for that registrar's monetization scheme.

I do not see in Mr. Isenberg's column the sort of limitation you are reading into it. If we were discussing a column stating "prostitutes have now rebranded themselves 'women'", I'm sure we would hear from you about what attributes are in common between most prostitutes and women generally.

The internet was not "intended" for commerce, and having taken a career detour away from the internet in the late 1980's, the idea of anyone making a dollar via the internet shocked the heck out of me. But now that organizations like Amazon.com, Ebay, Yahoo, and the like do indeed engage in activities for which the internet was not intended, I do not understand the logic behind declaring that taking a domain name like, say, videocameras.com, and using it to provide ad links to video cameras is some sort of disservice. I suppose the public at large would be better served if a domain like videocameras.com was the website for "Jim Bob's Thoughts About Video Cameras" or if the domain name was monopolized by a sole vendor of video cameras. But people shopping for video cameras by typing "videocameras.com" into their address bar - as some people do - would not be better served.

If advertising is legal then, no, I don't have a problem with someone using videocameras.com to sell video cameras, nor with someone using photography.com to provide paid links to relevant products, nor with someone using usedproducts.com to sell used products of that brand.

I'm not sure you understand Mr. Isenberg's larger point. While he may be tarring people you don't like with a broad brush, his objection is not about using domain names to advertise products. His statistically-unsupported objection is that domain names are "typically" used to advertise the wrong products, and each domain name should be used to advertise one and only one product.

Just to be clear on what it is to which you are objecting - since a whole mix of false whois data, browser hi-jacking, adware, etc., has been thrown on the table in association with "domainers" - domain names were not intended to be used for profit as a means of locating advertisements for things, e.g. the manner in which videocameras.com was registered and then used for an ad-filled webpage for video cameras. Do I understand your fundamental objection?

Today, cybersquatters have rebranded themselves as "domainers." Popular blogs and news sites track their activities. Industry conferences have sprouted to serve them.

Kindly associate the indefinite article "them" with a preceding noun in that passage. Maybe my English is faulty, but it seems that Mr. Isenberg states here that industry conferences have sprouted to serve cybersquatters who have rebranded themselves as "domainers".

A "brand", just to be sure here, is a distinctive and exlusive identifier. Now, I can think of two and only two of these conferences specifically relating to the domain business, and he uses the plural word "conferences" apparently to refer to both of them. Frankly, it seemed to me that he was having a good time during the one at which he appeared but, like the attorney who directly threatened the attendees that their appearance at the conference would provide a basis for serving them with lawsuits, maybe he wasn't having that good of a time.

Thank you for your comment. Please keep in mind that while whois privacy does not list the current registrant of a domain publicly, it will not prevent you from contacting the current owner.

If you want to file a complaint against a certain domain name owner (no matter if the real owner is displayed in the whois), you can always file the complaint against the person/entity listed in the whois. Even if it's the registrar or an independent whois privacy service.

In a normal WIPO complaint the registrar might then reveal the identity of the owner.

If you wish to contact the owner, the registrar will for example forward registered email. The phone number listed on the domain will most likely give you some constructions on how to contact the owner. The email either is forwarded, or will point you towards a web-form where you can send a message to the registrant.

This is not the appropriate forum for these questions, as they do not relate to the article under discussion.

The simple answer is that if you cannot prove cybersquatting with respect to the domain name under dispute, then a list of unrelated names is of limited usefulness. The UDRP refers to a "pattern" of registrations "in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct". Now in ordinary English, "such conduct" refers to the pattern directed toward the owner of the mark which is the basis of the dispute.

Some panelists appear to understand that, some don't.

http://arbiter.wipo.int/domains/decisions/html/2006/d2006-0445.html
Although some of the domain names registered by Respondent do raise questions, a bare list of domain names without evidence of how they are being used and whether they reflect bad faith, and a single adverse decision, do not make a pattern. Moreover, even if it were a pattern, and even if Respondent was found to have been a cybersquatter in another case, the question in this case is whether Respondent has cybersquatted this Domain Name.

Sorry if this is the wrong forum for this, but to follow-up to your post, my question presumes that you CAN prove cybersquatting with respect to one domain name, and you suspect that the registrant is cybersquatting with respect to other domain names similar to the first one; however, because of WHOIS privacy, this is difficult to ascertain. Is there any way to find out if the registrant is indeed the registrant for the other infringing domain names, without having to go to the trouble of filing complaints against several registrars (in effect asking them to cough up the name of the registrant) when it would be more economical, and sensical, to file just one complaint against one individual/company for all of the potentially infringing domains he/she/it has registered? Do you see what I mean?

Mine is not a legal question, but rather a hypothetical one. If you don't know, no need to respond, but I had the hope--given the complex nature of the posts in this forum--that someone might be able to answer this query.

Perhaps some definitions are in order, especially for me after a reader of one of my pieces objected to my failure to distinguish between cybersquatters and "legitimate domain name investors."

What is a cybersquatter? I distinguish between it and typosquatters, but perhaps the reader thinks they are the same. I assume a non-typo-cybersquatter takes domain names and holds them without actually using them, or just stuffs affiliated ads on them. He may register them right after they expire from someone else and attempt to gouge the old owner when they realize they forgot to renew it. (No sympathy from me for the old owner, they screwed up.) But this is just sleazy, not illegal or even really dishonest. And this is what I assume the reader would call a "legitimate domain name investor."

What about the guy who steals domains, like the ones who stole panix.com? Or ones who register trademarked names? Is there a name for them or would it besmirch the good name of cybersquatters to use that term for them?

And finally, WTF is a "domainer"? This is a new one to me. Can it really be a word if there's no Wikipedia entry for it?

So what about a domain that has content and advertising? For example some type of blog etc? Real 'legitimate' content. Is that "sleazy" as well, considering they make money of it?

What about larger corporations owning domains and not using them. For example "beautiful.com", owned by P&G?

What about a real estate investor that buys a property in a popular are and maybe tears the current building down or improves it etc.) and holds on to it until it increases in value. Maybe they even put up an advertising billboard ;-)

Where do you draw the line what to call sleazy?

There's a publicly available good (available domains) for those who can afford (auctions) to go after them when they drop. Other people invest in real estate, companies, etc. Some invest in domains. As long as they do not infringe with the rights of third parties, I am not quite sure where the problem is.

From Wikipedia:
Squatting is the act of occupying an abandoned or unoccupied space or building that the squatter does not own, rent or otherwise have permission to use. [...]

Whoever you are calling squatter here, has acquired the domain legally. They now own the property. They are not just occupying it, they legally purchased it.

Like this one. Yes, of course that's different. A child could see the difference.

What about larger corporations owning domains and not using them. For example “beautiful.com”, owned by P&G?

I'd say that P&G sells many beauty products and I can imagine them having a good use for it, although right now they're sitting on it. Once again I see a big difference between this and a company that holds on to a domain speculating that it might increase in value or just to suck phony ad revenue out of it.

What about a real estate investor that buys a property in a popular are and maybe tears the current building down or improves it etc.) and holds on to it until it increases in value. Maybe they even put up an advertising billboard ;-)

They pay taxes. THey pay real money for the property. You just said it, they invested in the property (what domainer does that?). They incur real risks in owning it. A domainer/squatter pays a few bucks a year.

Where do you draw the line what to call sleazy?

Good domains are a limited resource. Owning them with no productive purpose has little cost or risk, and yet it takes a potentially useful domain out of circulation until blackmail is paid.

Larry,
>> So what about a domain that has content and
>> advertising?
> Like this one. Yes, of course that's different. > A child could see the difference.

OK, so what is NewYorkDining.com for example. A parked page? It's got excellent restaurant reviews though?

The lines are blurring.

>> What about larger corporations owning domains
>> and not using them. For example
>> “beautiful.com”, owned by P&G?

> I'd say that P&G sells many beauty products and > I can imagine them having a good use for it,
> although right now they're sitting on it.
> Once again I see a big difference between this
> and a company that holds on to a domain
> speculating that it might increase in value or
> just to suck phony ad revenue out of it.

Right, so P&G has a more legitimate right to hold on to this name than anyone else? Are they doing a service by not using it?

Who says domainers are just all about "parking" their domains for ad revenue? Many domainers talk about developing their names into destinations. See the above example. So they invest in the names now and develop them over time. Sounds very similar to me to what you are saying about beautiful.com.

And finally - not all domainers intend to sell their domain holdings.

> They pay taxes. They pay real money for the
> property. You just said it, they invested in the
> property (what domainer does that?). They
> incur real risks in owning it. A
> domainer/squatter pays a few bucks a
> year.

The domainer invests in their property. They invest huge amounts of money for buying domains in auctions and from current owners. Many entities spend Millions of Dollars a month buying names. Sure, some of the names might not cost as much as a property, but to me it's the same idea. They also pay their "taxes" by paying the annual renewal fees.

The amount of money paid for renewals vs. taxes is really the only difference here, but they pay the fair legal price everyone pays. It doesn't really matter how high your "renewal price" is, in order to qualify as an "investment", does it?

> Good domains are a limited resource. Owning them
> with no productive purpose has little cost or
> risk, and yet it takes a potentially
> useful domain out of circulation until blackmail
> is paid.

Good real estate is limited as well. As said before, many of the large portfolio owners are not selling their names.

How do you define "productivity"? Many unsavvy users will consider parked pages helpful sources of information. Would they be continue to type in domain names if they did not find what they wanted? Why do people use it as an alternative method of search, if the "results" are so bad? Why does type-in traffic increase? Most of the "parked domains" are not even listed in search engines, at the moment.

And as noted above, the lines between content and no-content are much more blurry than you seem to think.

What is your definition of a CyberSquatter then? Someone who purchases a domain with the intend of re-selling it? With the intend of "parking" it for a while? Someone who purchases a domain and just uses it for email, because they don't add anything useful to the public space?